STATE OF NEW JERSEY VS. ANTHONY F. NOVELLINO (11-02-0199, MORRIS COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1085-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY F. NOVELLINO,
Defendant-Appellant.
_____________________________
Submitted February 28, 2017 – Decided August 10, 2017
Before Judges Fisher and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Indictment No. 11-02-0199.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on the
brief).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor and Paula C.
Jordao, Assistant Prosecutor, on the brief).
PER CURIAM
Judith Novellino1 was murdered on June 19, 2010. She had been
stabbed eighty-four times and a pig mask covered her face. A jury
convicted her former husband, defendant Anthony Novellino, of
first-degree murder and other offenses. Finding no merit in
defendant's arguments, which include challenges to the admission
of evidence regarding the pig mask and the denial of a suppression
motion, we affirm.
Defendant was charged in an indictment with knowing or
purposeful murder, N.J.S.A. 2C:11-3(a)(1) and (2), third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(d); fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(d); hindering apprehension, N.J.S.A. 2C:29-3(b)(1); and
tampering with physical evidence, N.J.S.A. 2C:28-6(1).
Prior to trial, Judge Robert J. Gilson conducted an
evidentiary hearing on defendant's motion to suppress statements
he made on four separate occasions after he was taken into custody.
The judge issued an order and a detailed written decision granting
the motion in part and denying it in part. The matter then
proceeded to trial.
1
Because defendant and the victim share a surname, for ease of
reference we refer to the victim by her first name. We intend no
disrespect in doing so.
2 A-1085-14T1
The trial evidence showed that on June 8, 2010, defendant and
Judith were divorced following a thirty-seven year marriage. Under
their divorce property settlement agreement, defendant retained
the marital residence but was required to pay Judith $110,000
within sixty days for her interest in the home. Judith was required
to remove her property from the home by June 22, 2010. She retained
all of the couples' collectible figurines except one, a figurine
of a pig, which defendant retained.
Eleven days later, on June 19, 2010, defendant and Judith's
daughter, Christina, went to the former marital home. Christina
walked upstairs to the bathroom, where she found Judith's blood-
covered body with a pig mask draped over Judith's face. The police
were called and responded to the scene.
The police attempted to contact defendant at his place of
employment, but defendant had not shown up for his scheduled shift
that day or the day before. The police also searched the house and
found a large wood-handled knife and a smaller knife in an alcove
on the first floor of the home.
The police obtained information from defendant's email
account showing communications with a woman in Puyallup,
Washington. They contacted the woman, confirmed she had been in
contact with defendant, and on June 24, 2010, located defendant
in a local Puyallup motel. Defendant was taken into custody by
3 A-1085-14T1
U.S. Marshals on charges of terroristic threats against Judith's
divorce attorney, and was turned over to the local Puyallup Police
Department.
Photographs taken of defendant showed a cut on the palm of
his right hand and bruising on his right hand and knuckles. A
letter defendant had written was retrieved from his motel room.
In part, it said, "Sorry for everything, but it was – wasn't my
fault, she jabbed me first."
On June 28, 2010, Morris County Prosecutor's Office Detective
Steven Wilson, who had flown to Washington, transported defendant
back to New Jersey and to the Morris County Jail. On July 29,
defendant made a request in the jail to speak with Denville Police
Captain Paul Nigro.2 He also completed a written inmate request
form asking that Nigro contact him "ASAP." Wilson and Nigro met
with defendant in the jail, advised defendant of his Miranda3
rights, and recorded their conversation. Defendant discussed the
divorce and explained that on June 19, 2010, he arrived home to
find Judith's car at the house. He said he did not park his car
2
Defendant and Nigro had a prior personal relationship. While
defendant was in the Puyallup jail, defendant asked to speak with
Nigro. On June 26, 2010, Nigro met with defendant in the Puyallup
jail and their conversation was recorded.
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
4 A-1085-14T1
in the driveway because he was concerned a moving truck might
arrive. Instead, he parked near a neighbor's house, walked through
his backyard, and entered the rear door of the house. He heard a
toilet flush upstairs, and went upstairs where he saw Judith in
the bathroom.
Defendant said Judith had a knife in the bathroom and
threatened him with it. He said Judith attempted to jab him with
the knife, a struggle ensued, and he cut his hand on the knife.
He recalled hitting Judith twice with the knife but denied stabbing
her eighty-four times. Defendant said everything happened in
fifteen seconds and his heart was pounding. According to defendant,
he then picked up the knife from the floor, washed his hands, and
washed the knife because it was covered in blood. Defendant denied
being angry, but admitted "what happened was wrong."
Defendant also stated that when he left the bathroom, he saw
the messy hall closet, picked a pig mask out of it, and threw the
mask into the bathroom. He denied placing the mask on Judith's
face. He told the officers he threw the mask because "the closet
is a pigpen."
Defendant then went downstairs and washed his hands in the
kitchen. Defendant denied planning anything and stated that when
he went downstairs he threw the knife under the stairwell.
Defendant removed his bloody shoes, put them in a bag, and later
5 A-1085-14T1
discarded the bag at a restaurant somewhere between New Jersey and
Ohio. When he left the house, he did not know where he was going,
but eventually traveled to Washington. He said he went to
Washington to give his car to a woman's daughter and intended to
return to New Jersey to "own up to everything."
On July 1, 2010, defendant again requested to speak with
Wilson and Nigro. They met with defendant in the jail, advised him
of his Miranda rights, and recorded their conversation with him.
Defendant admitted that in the days preceding the murder, he sent
pictures to Judith's family members showing the "smelly" and
"messy" conditions of the house due to an incontinence condition
from which she suffered. He explained, however, that he was not
"upset to the point that [he] would do something like" what was
done to Judith.
Defendant told the officers that when he found Judith in the
house, he asked her if she needed help moving things. He said
Judith was upset and that he was nervous when he saw the knife in
the bathroom because he feared Judith intended to use it or was
carrying it for protection. He said Judith was upset that he was
in the house and picked up the knife when she saw him.
Defendant claimed he "was in the wrong place at the wrong
time" and "was a different person" during the fifteen-second
incident. He said that when Judith pointed the knife at him, he
6 A-1085-14T1
felt threatened. Defendant recalled struggling for the knife,
stabbing Judith twice, and feeling, "like something was
controlling him." He denied being physically capable of stabbing
Judith eighty-four times. He was afraid Judith was dead, but
nevertheless washed his hands, took the pig mask from the closet,
and threw it into the bathroom. Defendant denied placing the mask
on Judith's face. Defendant also acknowledged throwing the knife
under the stairs to hide it.
A sheriff's officer collected evidence from the scene. He
retrieved the pig mask, which was on Judith's face, and he
testified it was oriented in alignment with Judith's facial
features. He also recovered two knives from underneath the stairs,
one covered in dust and the other without any dust. The knife that
was not covered in dust had an eight-inch blade and a wooden
handle.
Swabs of blood were collected from various places and items
within the home. DNA testing showed that Judith's blood was found
in the sink, on the pig mask, and on the eight-inch knife blade
found under the staircase. Defendant was identified as the source
of the DNA profile from a blood swab collected near the nozzle of
the kitchen sink.
The State presented the testimony of an expert in bloodstain
analysis, who testified that based on the blood found at the scene,
7 A-1085-14T1
and the lack of visible blood on the mask, the mask was
"introduced" after Judith was stabbed. He also testified that the
blood patterns showed Judith had attempted to defend herself.
The medical examiner determined that Judith suffered eighty-
four stab wounds, including: five to her face; eleven to her neck;
nineteen to her right shoulder; three to her right breast; three
to her left breast; four to her chest; thirteen to her abdomen;
fifteen to her hands; and seven to her back. The medical examiner
testified that the wood-handled knife found under the stairs was
consistent with certain of Judith's wounds that measured between
eight to ten inches in depth.
The wounds resulted in numerous internal injuries, including
the perforation of the small intestine and diaphragm, and a
puncture to the right lobe of the right lung. The medical examiner
opined that the cause of death was multiple sharp force injuries
and the manner of death was homicide.
Defendant's neighbors testified that defendant expressed
anger about Judith coming to the house and removing items when he
was not present. He also complained about the messiness of their
house, and the condition of their furniture due to Judith's
incontinence condition. Defendant showed the neighbors pictures
of furniture that he said Judith stained and referred to Judith
as a "pig." Defendant told a neighbor that he intended to show
8 A-1085-14T1
photographs of the stained furniture in court during the divorce
proceeding to humiliate Judith. He also asked neighbors to
telephone him if they saw Judith entering the home when he was not
present.
Defendant told a neighbor he was upset about the divorce, he
would not go "down without a fight . . . [and he] would get the
last laugh." Four days before Judith's murder, defendant brought
the neighbor a plant and said, "Here, I was going to put it on
Judy's grave, but it was too pretty."
The jury found defendant guilty of all of the charges.
Defendant was sentenced to a fifty-year custodial term on the
murder charge, subject to the requirements of the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. Following an appropriate merger,
the judge imposed concurrent three-year prison terms on the other
offenses.
On appeal, defendant makes the following arguments:
POINT I
THE TRIAL COURT ERRED PREJUDICIALLY IN DENYING
DEFENDANT'S MOTION TO EXCLUDE EVIDENCE OF A
MASK ON THE VICTIM'S FACE.
POINT II
[] DEFENDANT WAS GREATLY PREJUDICED BY THE
JURY'S HEARING OF HIGHLY INCRIMINATING
STATEMENTS MADE BY QUESTIONERS DURING HIS
RECORDED STATEMENT. (Not Raised Below).
9 A-1085-14T1
POINT III
[] DEFENDANT'S STATEMENTS WERE NOT MADE
KNOWINGLY AND VOLUNTARILY, AND WERE TAKEN IN
VIOLATION OF HIS ASSERTION OF THE RIGHT TO
COUNSEL, NECESSITATING SUPPRESSION. [U.S.
Const. amends. V, VI, XIV; N.J. Const. art.
I, ¶¶ 1, 9, 10].
POINT IV
[] DEFENDANT RECEIVED AN EXCESSIVE SENTENCE,
NECESSITATING REDUCTION.
I.
We first turn our attention to defendant's contention the
court erred by denying his motion to exclude evidence that the
victim was found with a pig mask placed over her face. Defendant
claims the evidence should have been excluded under N.J.R.E. 401
and 403, and as other bad acts evidence under N.J.R.E. 404(b). We
are not persuaded.
"A trial court's ruling on the admissibility of evidence is
reviewed on appeal for abuse of discretion." State v. Rose, 206
N.J. 141, 157 (2011); State v. Hess, 207 N.J. 123, 182 (2011).
Under this standard, the trial court's decision to allow evidence
should not be overturned "unless it can be shown that the trial
court palpably abused its discretion, that is, that its finding
was so wide [of] the mark that a manifest denial of justice
resulted." State v. Lykes, 192 N.J. 519, 534 (2007) (alteration
in original) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)).
10 A-1085-14T1
If the trial court does not determine the admissibility of evidence
under the correct legal standard, however, its decision is not
afforded any deference and we review the issue de novo. State v.
Reddish, 181 N.J. 553, 609 (2004).
Judge Gilson denied the motion to exclude the evidence in a
detailed and well-reasoned oral decision, and subsequent written
order and statement of reasons. We have carefully considered
defendant's assertions, find they are without merit sufficient to
warrant discussion in a written opinion, Rule 2:11-3(e)(2), and
affirm the court's order denying defendant's motion substantially
for the reasons set forth in Judge Gilson's oral and written
decisions.
We add only the following brief comments. Defendant's
arguments rest on the contention that the mask had little probative
value and substantial prejudicial effect, and thus should have
been excluded under N.J.R.E. 401 and 403, and under N.J.R.E. 404(b)
based on an application of the State v. Cofield, 127 N.J. 328
(1992) standard. As the trial court correctly determined, however,
the evidence was highly probative because it showed that prior to
Judith's murder defendant expressed anger about her perceived
messiness in the house, that he referred to her as a "pig," and
that he admitted to police that after stabbing Judith, he threw
the pig mask at her. Defendant also retained only one figurine in
11 A-1085-14T1
the divorce property settlement agreement reached eleven days
before Judith's death – a figurine of a pig.
Contrary to defendant's assertions, evidence of the mask
inferentially established defendant's identity as the murderer,
corroborated defendant's admissions that he stabbed Judith, and
supported the credibility of his statements to the police. It also
provided proof of defendant's motive, intent, and state of mind
for the stabbing, and supported the State's theory that defendant
knowingly and purposely killed Judith in part because of his anger
about her messiness in the household. Further, evidence concerning
the mask undermined defendant's theories that he acted in self-
defense or by passion or provocation. We are therefore convinced
that the premise for defendant's various arguments that the court
erred in admitting the evidence – that the mask had little
probative value – is wholly contradicted by the record.
II.
For the first time on appeal, defendant argues that his
recorded statements that were played for the jury were unduly
prejudicial. Defendant contends the recordings included questions
and statements by Nigro and Wilson that characterized the evidence
and defendant's conduct, or constituted statements of unproven
fact. Defendant asserts the court erred in admitting the recordings
12 A-1085-14T1
because the officers' questions and statements "essentially argued
the State's case."
We first note that trial counsel did not object to the
introduction of the recordings based on any claim the officers'
questions and statements were prejudicial or improper. We
therefore review for plain error, and "disregard any alleged error
'unless it is of such a nature as to have been clearly capable of
producing an unjust result.'" State v. Funderburg, 225 N.J. 66,
79 (2016) (quoting R. 2:10-2). We find no plain error here.
The recordings that were played for the jury were redacted
to delete any statements by the officers and defendant that were
unrelated to the commission of the crimes charged in the indictment
or otherwise unduly prejudicial to defendant. Counsel reviewed and
agreed to the redacted versions. There was no request to redact
the officers' questions and statements defendant now claims were
prejudicial, and there was no objection to the admission of the
recordings into evidence. We may presume based upon trial counsel's
failure to object that the officers' statements and questions were
not considered by defendant to be prejudicial. See, e.g., State
v. McGraw, 129 N.J. 68, 80 (1992) (finding that defendant's failure
to object to a jury charge "gives rise to a presumption that he
did not view its absence as prejudicial to his client's case").
13 A-1085-14T1
Moreover, the court ensured that defendant would not suffer
any prejudice as a result of any of the officers' statements or
questions. After playing the July 29 interrogation recording, the
court gave the following limiting instruction:
[D]uring the playing of the interview from
June 29, 2010, . . . and in the upcoming video
that you're about to see concerning his
interview on July 1st, 2010, you are going to
hear, and you probably already heard some
statements by the detectives and law
enforcement personnel that interviewed him
that include comments or opinions related to
the credibility of the [d]efendant, and what
may or may not have happened. You are not to
give those comments any weight. Determining
the credibility of defendant's statement and
what weight to give to it is for you and you
alone to determine. Similarly, you are to
determine the facts. As I have instructed you,
you are the sole judges of the facts.
Likewise, after the July 1, 2010 interrogation recording was
played, the court repeated the limiting instruction. In the court's
final instructions to the jury, it reminded the jury that where
it "gave a limiting instruction as to how to use certain evidence,
that evidence must be considered . . . for that purpose only."
Defendant does not challenge the substance of the limiting
instructions and acknowledges they were "accurate." Nevertheless,
he claims it was "impossible" for the jury to heed the judge's
instruction and, as a result, he suffered "severe prejudice." We
disagree. We presume that the jury followed the court's
14 A-1085-14T1
instructions, State v. Smith, 212 N.J. 365, 409 (2012), and the
jury therefore did not give "any weight" to the "comments or
opinions" expressed by the officers during the interrogation.
There is no basis in the record to support a contrary conclusion.
Thus, despite defendant's contention, he cannot demonstrate that
the officers' statements about which he now complains caused him
any prejudice.
Defendant relies on our decision in State v. Laboy, 270 N.J.
Super. 296, 302-09 (App. Div. 1994), where we held that it was
reversible error to permit an officer to testify about a non-
testifying co-defendant's statement implicating the defendant. We
rejected the State's contention the statement was admissible
because it showed what prompted the defendant to confess and
reasoned that the defendant's confrontation rights as defined in
Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622,
20 L. Ed. 2d 476, 479 (1968), are violated when a co-defendant's
confession implicating the defendant is admitted without an
opportunity to question the co-defendant. Id. at 305. Here,
admission of the officers' statements and questions during the
interrogation do not implicate his confrontation rights under
Bruton and, therefore, our holding in Laboy is inapposite.
We are also convinced that even assuming the statements of
the officers were admitted in error, they were not clearly capable
15 A-1085-14T1
of producing an unjust result. R. 2:10-2. Again, we are convinced
the evidence against defendant was overwhelming. See Sowell,
supra, 213 N.J. at 107-08; Nero, supra, 195 N.J. at 407. And, even
if all of the officers' questions and statements and defendant's
responses were redacted from the recordings, defendant's remaining
responses included numerous and detailed admissions that he
stabbed Judith, threw a pig mask on her face, hid the knife,
discarded his shoes covered with Judith's blood, and fled. Thus,
any alleged error in failing to sua sponte redact the recordings
to eliminate the officers' statements and questions was not clearly
capable of producing an unjust result.
III.
Defendant also contends the court erred by denying his motion
to suppress statements he made during the June 29 and July 1,
2010, recorded police interrogations that were introduced as
evidence at trial. Defendant argues he was questioned by the police
on four occasions, that his invocations of his right to counsel
were not honored, he was deprived of a right to contact counsel,
and the officers misled him by making statements that "could be
construed as an offer of leniency in return for his confession to
16 A-1085-14T1
the crime." Defendant therefore asserts the June 29 and July 1
statements should have been suppressed.4
At a hearing challenging the admission of statements made
during a custodial interrogation, the "State must prove beyond a
reasonable doubt that a defendant's confession was voluntary and
was not made because defendant's will was overborne," State v.
Knight, 183 N.J. 449, 462 (2005), and "the defendant was advised
of his rights and knowingly, voluntarily and intelligently waived
them," State v. W.B., 205 N.J. 588, 602 n.3 (2011).
When reviewing a trial court's denial of a motion to suppress
a defendant's statements, we must "engage in a 'searching and
critical' review of the record." State v. Maltese, 222 N.J. 525,
543 (2015) (quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)),
cert. denied, ___ U.S. ___, 136 S. Ct. 1187, 194 L. Ed. 2d 241
(2016). We defer to findings supported by sufficient credible
evidence in the record, particularly when they are grounded in the
judge's feel of the case and ability to assess the witnesses'
demeanor and credibility. State v. Robinson, 200 N.J. 1, 15 (2009);
State v. Elders, 192 N.J. 224, 243-44 (2007). This standard of
4
The court suppressed statements made by defendant to the police
while being transported from Washington to New Jersey. The court
denied defendant's request to suppress the recorded statements he
made to Nigro on June 26, 2010, in Washington, but none of those
statements were introduced at trial.
17 A-1085-14T1
review applies even when the motion court's "factfindings [are]
based on video or documentary evidence," such as recordings of
custodial interrogations by the police. State v. S.S., ___ N.J.
___, ___ (2017) (slip op. at 24-25).
We will not reverse a motion court's findings of fact based
on its review of a recording of a custodial interrogation unless
the findings are clearly erroneous or mistaken. Id. at 27. We
review issues of law de novo. Id. at 25; State v. Shaw, 213 N.J.
398, 411 (2012).
The determination of whether the State has satisfied its
burden of proving beyond a reasonable doubt that a defendant's
statement was voluntary requires "a court to assess 'the totality
of the circumstances, including both the characteristics of the
defendant and the nature of the interrogation.'" Hreha, supra, 217
N.J. at 383 (quoting State v. Galloway, 133 N.J. 631, 654 (1993)).
The court must determine "whether, under the totality of the
circumstances, the confession is 'the product of an essentially
free and unconstrained choice by its maker' or whether 'his will
has been overborne and his capacity for self-determination
critically impaired.'" State v. Pillar, 359 N.J. Super. 249, 271
(App. Div.) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-
26, 93 S. Ct. 2041, 2046-47, 36 L. Ed. 2d 854, 862 (1973)), certif.
denied, 177 N.J. 572 (2003). The "factors relevant to that analysis
18 A-1085-14T1
include 'the suspect's age, education and intelligence, advice
concerning constitutional rights, length of detention, whether the
questioning was repeated and prolonged in nature, and whether
physical punishment and mental exhaustion were involved.'" Hreha,
supra, 217 N.J. at 383 (quoting Galloway, supra, 133 N.J. at 654).
The court should also consider defendant's prior encounters with
law enforcement and the period of time that elapsed between the
administration of Miranda warnings and defendant's confession.
Ibid.
Defendant argues that the June 29 and July 1, 2010 statements
should have been suppressed because the officers failed to honor
his invocation of his right to counsel. We disagree. "Once an
accused invokes the right to counsel, that right must be
'scrupulously honored.'" State v. Chew, 150 N.J. 30, 61 (1997)
(quoting Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321, 326,
46 L. Ed. 2d 313, 321 (1975)). That "entails terminating all
questioning 'until counsel has been made available [or] unless the
accused [] initiates further communication, exchanges, or
conversations with the police.'" Ibid. (quoting Edwards v.
Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed.
2d 378, 386 (1981)).
If an accused "'initiates further communication, exchanges,
or conversations with the police,' the police officer may continue
19 A-1085-14T1
the interrogation in the absence of counsel." State v. Melendez,
423 N.J. Super. 1, 29 (App. Div. 2011) (quoting Edwards, supra,
451 U.S. at 485, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386), certif.
denied, 210 N.J. 28 (2012). "This type of waiver requires the
suspect to 'personally and specifically' initiate conversation."
Id. at 30 (quoting State v. Burris, 145 N.J. 509, 519 (1996));
see also State v. Wright, 97 N.J. 113, 122 (1984) ("An accused who
has expressed his desire to deal with the police only through his
counsel is not subject to further interrogation until counsel has
been made available, unless the accused himself initiates further
communication."). "The state must prove that the initiation
constituted a 'knowing, intelligent, and voluntary waiver beyond
a reasonable doubt.'" Ibid. (quoting Chew, supra, 150 N.J. at 61).
The record developed on defendant's suppression motion
supports Judge Gilson's determination that defendant's invocations
of his right to counsel were scrupulously honored. Following the
June 24, 2010 arrest, a Puyallup officer advised defendant of his
Miranda rights, defendant invoked his right to counsel, and no
interrogation by the Puyallup police took place.
Defendant subsequently initiated his June 26 conversation
with Nigro in Washington by requesting to speak with Nigro. During
the recorded conversation defendant confirmed he requested to
speak with Nigro, and Nigro again advised defendant of his Miranda
20 A-1085-14T1
rights before the conversation continued. The conversation
immediately ended when defendant again invoked his right to
counsel.
After being transported to New Jersey, defendant again
requested to speak with Nigro. He was given a written request form
in the jail which he completed. Based on his request, he met with
Nigro and Wilson on June 29, confirmed he requested to speak with
Nigro, and was again advised of his Miranda rights. The
interrogation then commenced and subsequently ended when defendant
invoked his right to counsel.
A few days later, defendant requested to speak with Nigro and
again completed a written form confirming the request. On July 1,
defendant met with Nigro and Wilson, confirmed he requested to
speak with them, and was given his Miranda rights. The
interrogation that followed ended when defendant exercised his
right to not speak without counsel.
As the court correctly determined, the evidence showed that
following defendant's initial invocation of his right to counsel
when he first spoke to the Puyallup police captain, defendant
initiated all subsequent conversations with the officers. In each
instance, the officers confirmed that defendant initiated the
communications, informed defendant of his Miranda rights, and
questioned him only until he invoked his right to counsel. There
21 A-1085-14T1
is sufficient credible evidence in the record amply supporting the
judge's factual findings. The State therefore satisfied its burden
of proving defendant knowingly and voluntarily waived his right
to counsel during the recorded interrogations that were admitted
as evidence at trial.
We reject defendant's contention that he was denied the
opportunity to contact an attorney. There is no evidence supporting
the contention. To the contrary, the record supports the court's
determination that the State took no action to prevent defendant
from contacting an attorney and that defendant never requested an
opportunity to contact an attorney. Moreover, the officers did not
have an obligation to contact or obtain an attorney for defendant
and, as the court found, the officers satisfied their
constitutional obligations by fully and repeatedly advising
defendant that he had a right to counsel and by honoring each of
his invocations of that right.
We are also not persuaded by defendant's claim that the
officers enticed defendant into speaking with them by entering
into an agreement with him or by promising leniency in exchange
for his confession. The record supports the court's finding that
there was no credible evidence of any agreement between the
officers and defendant.
22 A-1085-14T1
Defendant also claims that his statements were involuntary
because during the June 26, 2010 conversation between Nigro and
defendant in Washington, Nigro at one point said, "Let me help
you." Defendant's assertion that the statement began a pattern of
Nigro's offering "help" to the defendant finds no support in the
evidence. Similarly, our review of the record does not reveal any
evidence supporting defendant's claim that he was offered
"leniency" in exchange for his confession.
In sum, although defendant invoked his right to counsel at
different times, in each instance the invocation was scrupulously
honored by the officers, and questioning continued only after
defendant initiated further communications and was again fully
advised of his Miranda rights. The court therefore correctly denied
defendant's suppression motion and his June 29 and July 1, 2010
recorded statements were properly admitted.
IV.
Defendant argues that his aggregate fifty-year custodial
sentence subject to the requirements of NERA is excessive. More
particularly, he argues the court erred in its weighing of the
aggravating factors and mitigating factors under N.J.S.A. 2C:44-
1(a) and (b). He contends an appropriate weighing of the factors
permitted only the imposition of a thirty-year sentence with a
thirty-year period of parole ineligibility.
23 A-1085-14T1
We review a "trial court's 'sentencing determination under a
deferential standard of review.'" State v. Grate, 220 N.J. 317,
337 (2014) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)).
We may "not substitute [our] judgment for the judgment of the
sentencing court." Lawless, supra, 214 N.J. at 606. We must affirm
a sentence if: (1) the trial court followed the sentencing
guidelines; (2) its findings of fact and application of aggravating
and mitigating factors were based on competent, credible evidence
in the record; and (3) the application of the law to the facts
does not "shock[] the judicial conscience." State v. Bolvito, 217
N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).
Here, the court found aggravating factor one, N.J.S.A. 2C:44-
1(a)(1), "[t]he nature and circumstances of the offense, and the
role of the actor therein, including whether or not it was
committed in an especially heinous, cruel, or depraved manner,"
and nine, N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the
defendant and others from violating the law." The court also found
mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), the fact that
"[t]he defendant has no history of prior delinquency or criminal
activity or has led a law-abiding life for a substantial period
of time before the commission of the present offense." Defendant
does not claim there is insufficient evidence in the record
24 A-1085-14T1
supporting the court's finding of the aggravating and mitigating
factors, but instead asserts that the court erred in weighing and
balancing them.
Following its finding of aggravating and mitigating factors,
a court must then weigh and balance the factors in a process that
requires more than a quantitative comparison of "the number of
pertinent aggravating factors with the number of applicable
mitigating factors." State v. Fuentes, 217 N.J. 57, 72 (2014). The
sentencing court must "qualitatively assess[] and assign[] weight
in a case-specific balancing process." Id. at 72-73. "When the
aggravating and mitigating factors are identified, supported by
competent, credible evidence in the record, and properly
balanced," we will not "second-guess the sentencing court" and
must affirm the sentence provided it does not shock our judicial
conscience. State v. Case, 220 N.J. 49, 65 (2014). If the
sentencing court "forgoes a qualitative analysis" of the
aggravating and mitigating factors "or provides little 'insight
into the sentencing decision,' then" our deferential standard of
review of a sentence will not apply. Ibid.
Applying these principles, we discern no basis to upset the
sentence imposed. Judge Gilson engaged in a qualitative assessment
of the aggravating and mitigating factors. The judge placed "heavy"
weight on aggravating factor one because the evidence showed
25 A-1085-14T1
defendant's actions were particularly heinous, cruel and depraved.
The judge found the evidence established defendant's actions went
well beyond what was required to cause Judith's death because
defendant violently and brutally stabbed Judith eighty-four times,
including repeated stabbings after she had already fallen to the
floor. Moreover, the judge noted defendant's decision to place the
pig mask on Judith's face following the brutal assault and murder
as further evidence of his depravity.
The judge also placed heavy weight on aggravating factor
nine. The judge reasoned there was a need for deterrence because
defendant committed a serious and brutal crime but accepted no
responsibility for it and expressed no remorse about it. Again,
the record supports the judge's finding and its weighing of the
factor.
The judge gave mitigating factor seven limited weight under
the circumstances presented by the offense. The judge's finding
is supported by the record because, as our Supreme Court has
observed, "[t]he proper weight to be given to each [factor] is a
function of its gravity in relation to the severity of the
offense." Roth, supra, 95 N.J. at 368.
The judge also performed the requisite balancing of the
factors, and determined the aggravating factors "substantially
preponderate[d]" over the mitigating factors. The judge's careful
26 A-1085-14T1
and thoughtful analysis and weighing of the aggravating and
mitigating factors is supported by the record, was in accord with
the sentencing guidelines, and did not result in a sentence that
shocks our judicial conscience.
To the extent we discern any other arguments made on
defendant's behalf, they are without merit sufficient to warrant
discussion in a written opinion. Rule 2:11-3(e)(2).
Affirmed.
27 A-1085-14T1